Fifth Circuit to Southern States: Same-Sex Marriage is ‘Law of the Land’

The Fifth Circuit has issued opinions binding southern states telling them to get over the Supreme Court’s same-sex marriage ruling—same-sex marriage is now the “law of the land.”

While the federal appellate court acknowledged First Amendment rights to free speech and religion, it left for another day a ruling as to how these rights intersect. However, the court was quite clear that same-sex marriage was “the law of this circuit and should not be taken lightly by actors within the jurisdiction of this court.”

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The federal appellate court located in New Orleans, Louisiana, issued three opinions responding to same-sex marriage cases pending in the court. These opinions address the right of a couple to marry, and have their marriages from other states recognized, in the states of Texas, Louisiana, and Mississippi.

The Court issued an order telling federal district court judges in the three states to issue rulings by July 17th for the same-sex marriage cases pending in their courts. Plaintiffs in same-sex marriage cases in Texas and Mississippi had won, but not in Louisiana.

The plaintiffs had asserted that the failure to give these marriage rights to same-sex couples violated the Due Process and Equal Protection Clauses of the Fourteenth Amendment, the Full Faith and Credit Clause, and 42 U.S.C. section 1983 (civil rights violations).

In its opinion from Wednesday, the court noted that while this appeal was under submission, the U.S. Supreme Court decided the Obergefell v. Hodges same-sex marriage case.

The Fifth Circuit quoted from the Obergefell opinion holding that the Court has now recognized a “fundamental right to marry” for same-sex couples.

The Fifth Circuit also quoted from the SCOTUS opinion where it held “that there is no lawful basis for a State to refuse to recognize a lawful same-sex marriage performed in another State.”

The Court also quoted from the opinion where the high court held “The Constitution … does not permit the State to bar same-sex couples from marriage.”

Judge Jerry E. Smith, writing for the three-member panel, held that:

Obergefell, in both its Fourteenth and First Amendment iterations, is the law of the land and, consequently, the law of this circuit and should not be taken lightly by actors within the jurisdiction of this court [emphasis added]. We express no view on how controversies involving the intersection of these rights should be resolved but instead leave that to the robust operation of our system of laws and the good faith of those who are impacted by them.

In finding that the state may not refuse to marry same-sex couples, or acknowledge their marriages in other states, the court also acknowledged that the Supreme Court invoked the First Amendment as well as the Fourteenth Amendment by stating:

Finally, it must be emphasized that religions, and those who adhere to religious doctrines, may continue to advocate with utmost, sincere conviction that, by divine precepts, same-sex marriage should not be condoned [emphasis added]. The First Amendment ensures that religious organizations and persons are given proper protection as they seek to teach the principles that are so fulfilling and so central to their lives and faiths, and to their own deep aspirations to continue the family structure they have long revered. The same is true of those who oppose same-sex marriage for other reasons. In turn, those who believe allowing same-sex marriage is proper or indeed essential, whether as a matter of religious conviction or secular belief, may engage those who disagree with their view in an open and searching debate. The Constitution, however, does not permit the State to bar same-sex couples from marriage on the same terms as accorded to couples of the opposite sex [emphasis added].

While the Fifth Circuit condones “engag[ing] those who disagree with their view in an open and searching debate,” it also expressly admonished “actors within the jurisdiction of this court” that its ruling “should not be taken lightly” by them.

The Fifth Circuit also stated: “We express no view on how controversies involving the intersection of these rights should be resolved but instead leave that to the robust operation of our system of laws and the good faith of those who are impacted by them.”

The court thus left for another day, as is proper, a ruling in which it has specific facts and specific legal claims before the court that involve the intersection of religious and free speech rights with the new right to gay marriage.

Texas Attorney General Ken Paxton responded to the issuance of the opinion by the federal court by issuing a statement, saying, “The Fifth Circuit’s ruling today is consistent with the opinion my office issued on June 28, in response to Lt. Gov. Dan Patrick’s request for guidance.”

The attorney general continued, “The importance of protecting religious liberty while enforcing the law under Obergefell lies at the core of the opinion issued by my office and is a key consideration for County Clerks as they justifiably issue licenses in accordance with the Court’s ruling. The new right created by the U.S. Supreme Court to same-sex marriage can and must peaceably coexist with longstanding constitutional and statutory rights, including freedoms of religion and speech, and today’s ruling by the Fifth Circuit reflects that truth.”

Breitbart Texas reported the substance of the attorney general’s opinion, which analyzes the legal duties and religious liberty rights of county clerks who issue marriage licenses, and the judges who perform weddings.

Prior to the Fifth Circuit opinion, Governor Greg Abbott and Attorney General Paxton had both recognized the religious liberties of Texans and had issued statements as to how they see these liberties intersecting with the Obergefell ruling.

Louisiana Governor Bobby Jindal responded to the Fifth Circuit opinion by stating that he wanted an order from the Louisiana federal district judge. Jindal said Louisiana state agencies will follow the Louisiana Constitution prohibiting same-sex marriage until instructed by the district court. Louisiana was the only state to refuse to issue same-sex marriage licenses after the June 26th opinion. At that time, the Governor said he wanted to wait on a ruling by the Fifth Circuit.

Mississippi Governor Phil Bryant responded that he disagreed with the decision of the U.S. Supreme Court and thought it was a states-rights issue. He said he will continue to respect the religious liberties of Mississippians but will not fight the gay marriage ruling.

Lana Shadwick is a contributing writer and legal analyst for Breitbart Texas. She has served the state of Texas as a prosecutor and an associate family court judge. Follow her on Twitter@LanaShadwick2